About the Author: William O. Douglas (1898–1980), at age forty, was one of the youngest men ever to be appointed to the Supreme Court, and after thirty-six years (1939–1975), his tenure was the longest in Supreme Court history. As a child, he recovered from polio by walking outside, which fostered his love of the environment. Prior to his appointment to the Supreme Court, he was chairman of the Securities and Exchange Commission. He was an independent justice often described as more concerned with being right than having other justices vote with him.

Introduction

During the eighteenth and nineteenth centuries, the federal government issued few laws that affected issues of free speech. Two that did, the Alien and Sedition Acts, were never tested in the Supreme Court. Similarly, the Supreme Court never ruled on the validity of laws and executive orders affecting free speech during the Civil War (1861–1865). Further, prior to the twentieth century, the Court held that the First Amendment, which guarantees freedom of speech, was limited to actions by the federal government, not the states.

Around the beginning of the twentieth century, however, the issue of free speech began to attract more attention. During World War I (1914–1918), the Espionage and Sedition Acts and other legislation restricted free speech rights, and the Supreme Court, in six cases that came before it, held that this legislation was constitutional if the banned speech presented "a clear and present danger." In three of these cases, though, Justices Oliver Wendell Holmes and Louis Brandeis dissented, arguing that the legislation infringed freedom of speech. In the 1920s, the Supreme Court expanded the protection of freedom of speech by applying the First Amendment against the states. The Court continued this expansion in the 1930s by overturning legislation that prohibited the use of a red flag, which at the time was regarded as a symbol of communism and anarchy. In the 1950s, the Supreme Court for a time was influenced by the fear of communist expansion, generally allowing governmental repression of free speech. In 1957, though, the court limited the government's power to restrict free speech by holding that advocating ideas could not be banned, only advocating illegal acts. It was in this context that the Court heard Brandburg v. Ohio in 1969.

Significance

In Brandenburg, the Court reviewed the conviction of a Ku Klux Klan member under the Ohio Criminal Syndicalism Act. The Court voided this conviction, holding that advocating the use of force could be banned only when doing so "is directed to inciting or producing imminent lawless action." Justice Douglas, in his concurrence with the majority opinion, went further, arguing that the "clear and present danger" standard, which had been used to judge when speech could be banned since World War I, should be overruled and that political speeches should be "immune from prosecution." While his view was never adopted by the Court, the Brandenburg standard is much more protective of free speech than the "clear and present danger" test. During World War I and the Red Scare of the 1920s, the Court upheld bans on the advocacy of illegal ideas if those ideas were seen to produce a danger. Brandenburg, though, requires not only the advocacy of force but also that resulting danger be immediate.

Since 1969, the Supreme Court's decisions have largely been consistent with Brandenburg. At least two attempts to ban flag-burning were struck down by the Court as violations of the First Amendment, and in 1992 the Court held that a law forbidding the burning of a cross for racist purposes violated the First Amendment.

Primary Source: Brandenburg v. Ohio [excerpt]

SYNOPSIS: The Court's decision first surveys past cases and states that laws criminalizing speech can only criminalize advocacy of "imminent lawless" action. Because the Ohio law does not do this, it violates the Constitution. In his concurrence, Douglas agrees with the ruling but argue that the "clear and present danger" standard should be done away with, as it is unclear and allows unpopular speech to be suppressed. Speech, in Douglas's view, should be banned only when it becomes an "overt act."

The appellant, a leader of a Ku Klux Klan group, was convicted under the Ohio Criminal Syndicalism statute for "advocat[ing] … the duty, necessity, or propriety of crime, sabotage, violence, or unlawful methods of terrorism as a means of accomplishing industrial or political reform" and for "voluntarily assembl[ing] with any society, group, or assemblage of persons formed to teach or advocate the doctrines of criminal syndicalism.… He was fined $1,000 and sentenced to one to 10 years' imprisonment.…

The Ohio Criminal Syndicalism Statute was enacted in 1919.… In 1927, this Court sustained the constitutionality of California's Criminal Syndicalism Act, … the text of which is quite similar to that of the laws of Ohio. Whitney v. California, … The Court upheld the statute on the ground that, without more, "advocating" violent means to effect political and economic change involves such danger to the security of the State that the State may outlaw it.… But Whitney has been thoroughly discredited by later decisions. See Dennis v. United States… These later decisions have fashioned the principle that the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action. As we said in Noto v. United States … "the mere abstract teaching … of the moral propriety or even moral necessity for a resort to force and violence, is not the same as preparing a group for violent action and steeling it to such action." … A statute which fails to draw this distinction impermissibly intrudes upon the freedoms guaranteed by the First and Fourteenth Amendments. It sweeps within its condemnation speech which our Constitution has immunized from governmental control.…

Measured by this test, Ohio's Criminal Syndicalism Act cannot be sustained. The Act punishes persons who "advocate or teach the duty, necessity, or propriety" of violence "as a means of accomplishing industrial or political reform"; or who publish or circulate or display any book or paper containing such advocacy; or who "justify" the commission of violent acts "with intent to exemplify, spread or advocate the propriety of the doctrines of criminal syndicalism"; or who "voluntarily assemble" with a group formed "to teach or advocate the doctrines of criminal syndicalism." Neither the indictment nor the trial judge's instructions to the jury in any way refined the statute's bald definition of the crime in terms of mere advocacy not distinguished from incitement to imminent lawless action.

Accordingly, we are here confronted with a statute which, by its own words and as applied, purports to punish mere advocacy and to forbid, on pain of criminal punishment, assembly with others merely to advocate the described type of action. Such a statute falls within the condemnation of the First and Fourteenth Amendments. The contrary teaching of Whitney v. California, supra, cannot be supported, and that decision is therefore overruled.

Reversed.…

Mr. Justice Douglas, concurring.

While I join the opinion of the Court, I desire to enter a caveat.

The "clear and present danger" test was adumbrated by Mr. Justice Holmes in a case arising during World War I—a war "declared" by the Congress, not by the Chief Executive. The case was Schenck v. United States … where the defendant was charged with attempts to cause insubordination in the military and obstruction of enlistment. The pamphlets that were distributed urged resistance to the draft, denounced conscription, and impugned the motives of those backing the war effort. The First Amendment was tendered as a defense. Mr. Justice Holmes in rejecting that defense said:

The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent. It is a question of proximity and degree….

In the 1919 Term, the Court applied the Schenck doctrine to affirm the convictions of other dissidents in World War I. Abrams v. United States, … was one instance. Mr. Justice Holmes, with whom Mr. Justice Brandeis concurred, dissented. While adhering to Schenck, he did not think that on the facts a case for overriding the First Amendment had been made out:

It is only the present danger of immediate evil or an intent to bring it about that warrants Congress in setting a limit to the expression of opinion where private rights are not concerned. Congress certainly cannot forbid all effort to change the mind of the country.…

The dissents in Abrams … show how easily "clear and present danger" is manipulated to crush what Brandeis called "[t]he fundamental right of free men to strive for better conditions through new legislation and new institutions" by argument and discourse … even in time of war. Though I doubt if the "clear and present danger" test is congenial to the First Amendment in time of a declared war, I am certain it is not reconcilable with the First Amendment in days of peace.

The Court quite properly overrules Whitney v. California … which involved advocacy of ideas which the majority of the Court deemed unsound and dangerous. Mr. Justice Holmes, though never formally abandoning the "clear and present danger" test, moved closer to the First Amendment ideal when he said in dissent in Gitlow v. New York….

Every idea is an incitement. It offers itself for belief and if believed it is acted on unless some other belief outweighs it or some failure of energy stifles the movement at its birth. The only difference between the expression of an opinion and an incitement in the narrower sense is the speaker's enthusiasm for the result. Eloquence may set fire to reason. But whatever may be thought of the redundant discourse before us it had no chance of starting a present conflagration. If in the long run the beliefs expressed in proletarian dictatorship are destined to be accepted by the dominant forces of the community, the only meaning of free speech is that they should be given their chance and have their way.

We have never been faithful to the philosophy of that dissent.…

Out of the "clear and present danger" test came other offspring. Advocacy and teaching of forcible overthrow of government as an abstract principle is immune from prosecution. Yates v. United States…. But an "active" member, who has a guilty knowledge and intent of the aim to overthrow the Government by violence, … may be prosecuted.… And the power to investigate, backed by the powerful sanction of contempt, includes the power to determine which of the two categories fits the particular witness.… And so the investigator roams at will through all of the beliefs of the witness, ransacking his conscience and his innermost thoughts.…

I see no place in the regime of the First Amendment for any "clear and present danger" test, whether strict and tight as some would make it, or free-wheeling as the Court in Dennis rephrased it.

When one reads the opinions closely and sees when and how the "clear and present danger" test has been applied, great misgivings are aroused. First, the threats were often loud but always puny and made serious only by judges so wedded to the status quo that critical analysis made them nervous. Second, the test was so twisted and perverted in Dennis as to make the trial of those teachers of Marxism an all-out political trial which was part and parcel of the cold war that has eroded substantial parts of the First Amendment.

Action is often a method of expression and within the protection of the First Amendment.

Suppose one tears up his own copy of the Constitution in eloquent protest to a decision of this Court. May he be indicted? …

Last Term the Court held in United States v. O'Brien… that a registrant under Selective Service who burned his draft card in protest of the war in Vietnam could be prosecuted. The First Amendment was tendered as a defense and rejected, the Court saying:

The issuance of certificates indicating the registration and eligibility classification of individuals is a legitimate and substantial administrative aid in the functioning of this system. And legislation to insure the continuing availability of issued certificates serves a legitimate and substantial purpose in the system's administration.…

But O'Brien was not prosecuted for not having his draft card available when asked for by a federal agent. He was indicted, tried, and convicted for burning the card. And this Court's affirmance of that conviction was not, with all respect, consistent with the First Amendment.…

One's beliefs have long been thought to be sanctuaries which government could not invade. Barenblatt [v. United States] is one example of the ease with which that sanctuary can be violated. The lines drawn by the Court between the criminal act of being an "active" Communist and the innocent act of being a nominal or inactive Communist mark the difference only between deep and abiding belief and casual or uncertain belief. But I think, that all matters of belief are beyond the reach of subpoenas or the probings of investigators. That is why the invasions of privacy made by investigating committees were notoriously unconstitutional. That is the deep-seated fault in the infamous loyalty-security hearings which, since 1947 when President Truman launched them, have processed 20,000,000 men and women. Those hearings were primarily concerned with one's thoughts, ideas, beliefs, and convictions. They were the most blatant violations of the First Amendment we have ever known.

The line between what is permissible and not subject to control and what may be made impermissible and subject to regulation is the line between ideas and overt acts.

The example usually given by those who would punish speech is the case of one who falsely shouts fire in a crowded theatre.

This is, however, a classic case where speech is brigaded with action. See Speiser v. Randall … They are indeed inseparable and a prosecution can be launched for the overt acts actually caused. Apart from rare instances of that kind, speech is, I think, immune from prosecution. Certainly there is no constitutional line between advocacy of abstract ideas as in Yates and advocacy of political action as in Scales [v. United States]. The quality of advocacy turns on the depth of the conviction; and government has no power to invade that sanctuary of belief and conscience.

Further Resources

BOOKS

Ball, Howard, and Phillip J Cooper. Of Power and Right: Hugo Black, William O. Douglas, and America's Constitutional Revolution. New York: Oxford University Press, 1992.

Douglas, William O. The Court Years, 1939–1975: The Autobiography of William O. Douglas. New York: Random House, 1980.